J-S87003-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOHNNIE LEWIS BROWN,

Appellant No. 1286 MDA 2016

Appeal from the PCRA Order May 24, 2016

in the Court of Common Pleas of Adams County

Criminal Division at No.: CP-01-CR-0001178-2010

BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED DECEMBER 16, 2016

Appellant, Johnnie Lewis Brown, appeals from the order1 dismissing his 

second petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 

Pa.C.S.A. §§ 9541-9546, as untimely. Counsel for Appellant has filed a 

Turner/Finley2“no merit” letter and has petitioned this Court to withdraw 

from representation. We grant counsel’s petition to withdraw, and affirm the 

order of the PCRA court.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 We have amended the caption to reflect the date the order was entered on 

the docket. 

2 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 
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The PCRA court aptly set forth the relevant facts and procedural 

history of this case as follows:

On August 9, 2011 a jury convicted [Appellant] of 

possession with intent to deliver cocaine under 35 P.S. § 780—

113(a)(30), possession of drug paraphernalia under 35 P.S. § 

780—113(a)(32), and escape under 18 Pa.C.S.A. § 5121(a). 

Following the verdict the Commonwealth gave oral notice of 

intent to seek the five[-]year mandatory minimum related to 

possession with intent to deliver cocaine and a subsequent 

written notice was filed [on] October 17, 2011.

On October 20, 2011, the [trial court] sentenced 

[Appellant] to an aggregate of six to twelve years in a state 

correctional institution. On the possession with intent to deliver 

count [Appellant] was sentenced to five to ten years pursuant to 

the mandatory sentencing provisions of 18 Pa.C.S.A. § 

7508(a)(3)(ii).

[Appellant] filed a timely appeal to the Pennsylvania 

Superior Court. The judgment of sentence was affirmed by the 

Pennsylvania Superior Court on July 31, 2012.

On June 27, 2013[, Appellant] filed his first PCRA petition 

alleging ineffective assistance of counsel. [The PCRA court] 

denied [Appellant’s] first PCRA petition on February 28, 201[4] 

by order and opinion entered that date. On December 23, 2014, 

the Superior Court of Pennsylvania affirmed [the PCRA court’s] 

denial of [Appellant’s] first PCRA petition.

On March 1[4], 2016[, Appellant] filed his second PCRA 

petition wherein [he] asserts that the decision in Montgomery 

v. Louisiana, 136 S.Ct. 718 (2016)[3] set a new rule of 

____________________________________________

3

In Montgomery, the United States Supreme Court determined that its 

prior decision in Miller v. Alabama, 132 S.Ct. 2455 (2012), which held it 

unconstitutional for states to sentence a juvenile homicide defendant to life 

in prison without the possibility of parole, constituted a new substantive rule 

of constitutional law that must be applied retroactively to cases on collateral 

(Footnote Continued Next Page)
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substantive constitutional law that must be applied by state 

collateral review courts. He further appears to argue that the 

Montgomery v. Louisiana decision applies to the holding from 

Alleyne v. United States, 133 S.Ct. 2151 (2013),[4] 

retroactively to mandatory minimum sentences imposed 

pursuant to 18 Pa.C.S.A. § 7508(a)(3)(ii). 

[On March 18, 2016, the PCRA court entered an order 

appointing current counsel to represent Appellant.] A prehearing conference was held with [Appellant] participating by 

video on April 25, 2016. 

(PCRA Court Rule 907 Notice, 4/29/16, at 1-2) (some capitalization omitted; 

citation formatting provided). 

On April 29, 2016, the PCRA court issued notice of its intent to dismiss 

Appellant’s PCRA petition without a hearing. See Pa.R.Crim.P. 907(1). On 

May 24, 2016, it entered its order dismissing the PCRA petition. Appellant 

timely appealed.

On July 22, 2016, Appellant filed a concise statement of errors 

complained of on appeal, see Pa.R.A.P. 1925(b), raising the following issue

for review: “Did the [PCRA] [c]ourt err[] in determining that [Appellant’s] 

PCRA petition be denied, when [Appellant] was sentenced to a mandatory 

sentence, when Alleyne v. [United States,] held that mandatory 

sentencing laws in Pennsylvania are unconstitutional, and after the [United 

(Footnote Continued) _______________________

review. See Montgomery, supra at 736. Miller has no application to the 

crimes committed by Appellant or the sentence he received for them.

4

In Alleyne, the United States Supreme Court held that, under the Sixth 

Amendment to the United States Constitution, a jury must find beyond a 

reasonable doubt any facts that increase a mandatory minimum sentence. 

See Alleyne, supra at 2158.
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States] Supreme Court’s decision in Montgomery v. Louisiana?” (Rule 

1925(b) Statement, 6/22/16, at 1).5 The PCRA court entered an opinion on 

August 3, 2016. See Pa.R.A.P. 1925(a).

On September 21, 2016, counsel for Appellant filed with this Court a 

Turner/Finley “no merit” letter and petition to withdraw from 

representation. On September 26, 2016, this Court entered an order 

advising Appellant of his right to file a pro se or counseled response within 

thirty days. Appellant did not file a response.6 

Before we may review the merits of Appellant’s claims, we 

must determine if counsel has satisfied the requirements to be 

permitted to withdraw from further representation.

The Turner/Finley decisions provide the 

manner for post-conviction counsel to withdraw from 

representation. The holdings of those cases 

mandate an independent review of the record by 

competent counsel before a PCRA court or appellate 

court can authorize an attorney’s withdrawal. The 

necessary independent review requires counsel to 

file a “no-merit” letter detailing the nature and 

____________________________________________

5 Appellant’s Rule 1925(b) statement was untimely. Under the 

circumstances of this case, where counsel has filed a Turner/Finley letter 

and petition to withdraw, and the PCRA court prepared a Rule 1925(a) 

opinion, we will address the merits of Appellant’s claim on appeal. See

Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012)

(“[w]hen counsel has filed an untimely Rule 1925(b) statement and the trial 

court has addressed those issues we . . . may address the merits of the 

issues presented.”) (citation omitted).

6 The Commonwealth filed a letter notifying this Court that it is relying on 

the PCRA court’s Rule 1925(a) opinion and is in agreement with counsel’s 

determination that this appeal lacks merit. (See Commonwealth’s Letter, 

10/04/16).
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extent of his review and list each issue the petitioner 

wishes to have examined, explaining why those 

issues are meritless. The PCRA court, or an 

appellate court if the no-merit letter is filed before it, 

then must conduct its own independent evaluation of 

the record and agree with counsel that the petition is 

without merit. 

In Commonwealth v. Friend, 896 A.2d 607 

(Pa. Super. 2006)[,] abrogated in part by 

[Commonwealth v.]Pitts, [981 A.2d 875 (Pa. 

2009)], this Court imposed additional requirements 

on counsel that closely track the procedure for 

withdrawing on direct appeal. Pursuant to Friend,

counsel is required to contemporaneously serve upon 

his client his no-merit letter and application to 

withdraw along with a statement that if the court 

granted counsel’s withdrawal request, the client may 

proceed pro se or with a privately retained attorney. 

Though Chief Justice Castille noted in Pitts that this 

Court is not authorized to craft procedural rules, the 

Court did not overturn this aspect of Friend as those 

prerequisites did not apply to the petitioner in Pitts.

See Pitts, supra at 881 (Castille, C.J., concurring).

After the decision in Pitts, this Court held in 

Commonwealth v. Widgins, 29 A.3d 816 (Pa. 

Super. 2011), that the additional procedural 

requirements of Friend were still applicable during 

collateral review.

Commonwealth v. Freeland, 106 A.3d 768, 774–75 (Pa. Super. 2014) 

(some citations omitted).

Here, we conclude that PCRA counsel has substantially complied with 

the requirements of Turner/Finley and their progeny. (See Turner/Finley

“no merit” letter, 9/21/16, at 1-4). Counsel has detailed his review of the 

record and his conclusion that Appellant’s claim is meritless. (See id.). 

Counsel also furnished Appellant with a copy of his “no merit” letter, 
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advising him of his right to proceed pro se or to retain private counsel. (See 

id. at 4). Accordingly, we will grant counsel’s petition to withdraw.

We now turn to this appeal to determine whether it is indeed 

meritless. As this Court has explained:

Our standard of review of an order denying PCRA relief is 

whether the record supports the PCRA court’s determination, and 

whether the PCRA court’s determination is free of legal error. 

The PCRA court’s findings will not be disturbed unless there is no 

support for the findings in the certified record. 

Commonweath v. Brown, 143 A.3d 418, 420 (Pa. Super. 2016) (citations 

omitted).

In the instant case, the PCRA court determined that Appellant’s 

petition is untimely, with no exception to the PCRA’s time-bar pleaded or 

proven. (See PCRA Court Opinion, 8/03/16, at 1). After review, we agree. 

The PCRA provides eligibility for relief in conjunction with 

cognizable claims, . . . and requires petitioners to comply with 

the timeliness restrictions. . . . [A] PCRA petition, including a 

second or subsequent petition, must be filed within one year of 

the date that judgment becomes final. A judgment becomes 

final for purposes of the PCRA at the conclusion of direct review, 

including discretionary review in the Supreme Court of the 

United States and the Supreme Court of Pennsylvania, or at the 

expiration of time for seeking the review.

It is well-settled that the PCRA’s time restrictions are 

jurisdictional in nature. As such, this statutory time-bar 

implicates the court’s very power to adjudicate a controversy 

and prohibits a court from extending filing periods except as the 

statute permits. Accordingly, the period for filing a PCRA 

petition is not subject to the doctrine of equitable tolling; 

instead, the time for filing a PCRA petition can be extended only 

by operation of one of the statutorily enumerated exceptions to 

the PCRA time-bar. 
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The exceptions to the PCRA time-bar are found in Section 

9545(b)(1)(i)–(iii) (relating to governmental interference, newly 

discovered facts, and newly recognized constitutional rights), 

and it is the petitioner’s burden to allege and prove that one of 

the timeliness exceptions applies. Whether a petitioner has 

carried his burden is a threshold inquiry that must be resolved 

prior to considering the merits of any claim. . . . 

Commonwealth v. Robinson, 139 A.3d 178, 185–86 (Pa. 2016) 

(quotation marks and citations omitted).

Here, Appellant’s judgment of sentence became final on October 29, 

2012, when his time to file a petition for writ of certiorari with the United 

States Supreme Court expired. See U.S. Sup. Ct. R. 13; 42 Pa.C.S.A. § 

9545(b)(3). Therefore, Appellant had until October 29, 2013, to file a timely 

PCRA petition. See 42 Pa.C.S.A. § 9545(b)(1). Because Appellant filed the 

instant petition on March 14, 2016, it is untimely on its face, and the PCRA 

court lacked jurisdiction to review it unless he pleaded and proved one of the 

statutory exceptions to the time-bar. See 42 Pa.C.S.A. § 9545(b)(1)(i)-(iii).

Section 9545 of the PCRA provides only three limited exceptions that 

allow for review of an untimely PCRA petition: 

(i) the failure to raise the claim previously was the result 

of interference by government officials with the presentation of 

the claim in violation of the Constitution or laws of this 

Commonwealth or the Constitution or laws of the United States; 

(ii) the facts upon which the claim is predicated were 

unknown to the petitioner and could not have been ascertained 

by the exercise of due diligence; or 

(iii) the right asserted is a constitutional right that was 

recognized by the Supreme Court of the United States or the 

Supreme Court of Pennsylvania after the time period provided in 
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this section and has been held by that court to apply 

retroactively. 

Id.

Any petition invoking an exception must “be filed within [sixty] days of 

the date the claim could have been presented.” Id. at § 9545(b)(2). “If the 

[PCRA] petition is determined to be untimely, and no exception has been 

pled and proven, the petition must be dismissed without a hearing because 

Pennsylvania courts are without jurisdiction to consider the merits of the 

petition.” Commonwealth v. Jackson, 30 A.3d 516, 519 (Pa. Super. 

2011), appeal denied, 47 A.3d 845 (Pa. 2012) (citation omitted).

Here, Appellant claims the benefit of the newly recognized and 

retroactively applied constitutional right exception at 42 Pa.C.S.A. § 

9545(b)(1)(iii), by arguing that his mandatory minimum sentence is 

unconstitutional pursuant to Montgomery and Alleyne. (See PCRA 

petition, 3/14/16, at 3, 8). Appellant asserts that the Montgomery Court 

held that mandatory minimum sentencing schemes are unconstitutional, and 

that this holding mandates retroactive application of Alleyne to cases such 

as his on collateral review. (See id.; see also Rule 1925(b) Statement, 

6/22/16, at 1). We disagree. 

“[A] new rule of constitutional law is applied retroactively to cases on 

collateral review only if the United States Supreme Court or the 

Pennsylvania Supreme Court specifically holds it to be retroactively 

applicable to those cases.” Commonwealth v. Whitehawk, 146 A.3d 266, 

271 (Pa. Super. 2016) (citation omitted). Neither Court has held that 
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Alleyne is applied retroactively. Rather, our Supreme Court issued an 

opinion in Commonwealth v. Washington, 142 A.3d 810 (Pa. 2016), 

wherein it held “Alleyne does not apply retroactively to cases pending on 

collateral review[.]” Washington, supra at 820.

Here, Appellant’s argument that the United States Supreme Court, in 

Montgomery, held that Alleyne applies retroactively, lacks merit. As 

previously noted, in Montgomery, the Supreme Court held “Miller

announced a substantive rule that is retroactive in cases on collateral 

review.” Montgomery, supra at 732. Its decision did not concern 

Alleyne. Thus, Appellant has failed to establish that Alleyne set forth a 

new constitutional law that is applicable retroactively to cases on collateral 

review. See 42 Pa.C.S.A. § 9545(b)(1)(iii).

Accordingly, we conclude that Appellant has not met his burden of 

proving that his untimely PCRA petition fits within one of the three 

exceptions to the PCRA’s time-bar. See Robinson, supra at 186. 

Therefore, we affirm the order of the PCRA court.

Order affirmed. Petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/16/2016